During the year of 2017, the public was stunned by revelations of sexual molestation of young athletes by coaches, trainers, and others associated with USA Gymnastics, USA Swimming, and USA Taekwondo. As public scrutiny focused on this scandal, it was soon learned that over the past 20 years, at least 368 victims, many of whom were young athletes, were subjected to sexual abuse by coaches, doctors, or other adults affiliated with youth sports programs. Victims claimed that youth sports organizations did nothing in response to their cries for help.
Among the accused was Dr. Larry Nassar. On January 24, 2018, Nassar was sentenced to 175 years in prison for sexually assaulting numerous amateur gymnasts for over 15 years. In May 2018, Michigan State University—where Nassar was employed while working with USA Gymnastics—agreed to pay $500 million to settle lawsuits brought by 332 of his victims.
These and other revelations of the sexual molestation of minors engaged in athletic training and performance led to the near-unanimous enactment by Congress, in February 2018, of the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017.
The Act contains eight provisions designed to reduce the risk of sexual molestation of minors in amateur sports.
1. Mandatory reporting of child sexual abuse at facilities under the jurisdiction of amateur sports organizations recognized by the United States Olympic Committee
For many years, it has been a federal offense not to report child sexual abuse occurring on federal property to law enforcement authorities. The Act extends this reporting requirement to additional “covered individuals” or adults authorized by a national governing body (or any entity subject to the jurisdiction of a national governing body such as a private gymnasium) to interact with minors or amateur athletes at events sanctioned by national governing body members and national governing bodies such as during travel, practices, competitions, and health or medical treatment. Victims are not required to self-report under this provision.
The mandatory reporting requirement also applies to a long list of “covered professionals” who “while engaged in a professional capacity or activity … on federal land or in a federally operated (or contracted) facility, learns of facts that give reason to suspect that a child has suffered an incident of child abuse.” Covered professionals are persons engaged in mental health, education, law enforcement, childcare, and health-related occupations. Clergy are not specifically mentioned.
The reporting requirement arises where the person “learns of facts that give reason to suspect that a child has suffered an incident of child abuse, including sexual abuse.” The report of child abuse must be made to an agency designated by the Attorney General, which can be a local or federal law enforcement agency.
2. Civil remedies for personal injuries
The Act allows minor victims to sue their perpetrators for 14 criminal offenses that cover sexual abuse acts and exploitation of minors as well as human trafficking crimes.
3. Monetary damages
The Act clarifies that once a victim has established a harm occurred, the court will presume $150,000 in monetary damages. Punitive damages also may be awarded when warranted.
4. Statute of limitations
The Act extends the statute of limitations for a minor victim of a federal sex offense to file a civil action to 10 years from the date such individual reaches age 18. Previously, the statute of limitations was 3 years.
The Act addresses immunity of persons making reports of child abuse as follows:
All persons who, acting in good faith, make a report … or otherwise provide information or assistance in connection with a report, investigation, or legal intervention pursuant to a report, shall be immune from civil and criminal liability arising out of such actions. There shall be a presumption that any such persons acted in good faith. If a person is sued because of the person’s performance of one of the above functions, and the defendant prevails in the litigation, the court may order that the plaintiff pay the defendant’s legal expenses. Immunity shall not be accorded to persons acting in bad faith.
The Act provides that all covered individuals and professionals “shall receive periodic training in the obligation to report, as well as in the identification of abused and neglected children.”
7. Failure to report child abuse
The Act provides that a mandatory reporter “who learns of facts that give reason to suspect that a child has suffered an incident of child abuse … and fails to make a timely report … shall be fined under this title or imprisoned not more than 1 year or both.”
8. Required policies
The Amateur Sports Act was enacted in 1978 to charter the United States Olympic Committee, which in turn charters 47 “national governing bodies” (NGBs) for each sport, such as USA Gymnastics, USA Swimming, USA Volleyball, and USA Taekwondo. Each NGB establishes the rules for its members and promotes amateur competition in that sport.
The Act imposes the following requirements upon NGBs:
Develop and enforce policies, mechanisms, and procedures to prevent the abuse, including physical abuse and sexual abuse, of any minor or amateur athlete, including:
(A) requiring all adults authorized by a national governing body or a member of a national governing body to interact with a minor or amateur athlete at an amateur sports organization facility or at any event sanctioned by a national governing body or a member of a national governing body, to report facts that give reason to suspect child abuse, including sexual abuse, as required by relevant Federal or State law, to law enforcement authorities and other appropriate authorities, including an entity designated by the corporation to investigate and resolve such allegations;
(B) establishing a mechanism, approved by a trained expert on child abuse, that allows an individual to easily report an incident of child abuse … to the national governing body or another authority, including an entity designated by the corporation;
(C) procedures to ensure that covered individuals are instructed to avoid one-on-one situations with any amateur athlete who is a minor (other than such an athlete for whom the covered individual is a legal guardian) at an amateur sports organization facility, at any event sanctioned by a national governing body, or any event sanctioned by a member of a national governing body, without being observable or interruptible by another adult; and
(D) oversight procedures, including regular and random audits, not to exceed once a year, conducted by subject matter experts unaffiliated with the national governing body, of all members and adults described in subparagraph (A) to ensure that policies and procedures developed under this paragraph are followed correctly and that consistent training is offered and given to all members regarding prevention of sexual abuse.
Key point. The new legislation clarifies that the Amateur Sports Act does not limit the ability of an NGB to prevent an adult who is subject to a sexual misconduct allegation from interacting with a minor or amateur athlete until there is a determination that there is no risk to a minor or amateur athlete resolution of the allegation against him or her.
Relevance to churches
The Act does not directly affect churches that do not participate in interstate or international amateur athletic competition. Its purpose, as stated in its preamble, is to “mandate the reporting of child abuse in organizations that work with amateur athletes; strengthen civil remedies for all victims of sexual abuse; and clarify the duties of national governing bodies … such as USA Gymnastics, regarding allegations of sexual abuse.” An “amateur athlete” is defined by the Act as “an athlete who meets the eligibility standards established by the national governing body or paralympic sports organization for the sport in which the athlete competes.”
While many churches will not be directly affected by the Act, every church will be indirectly affected by the “best practices” and “standards of care” embodied in the Act. The Act will be relevant in assisting church leaders in establishing or updating their own child protection and abuse reporting procedures. Church leaders often are frustrated by the lack of concrete guidance in establishing such policies, and so efforts by other charities, and most importantly by the federal and state governments, to formulate child protection policies can be helpful, at least indirectly, to churches, in the following two ways:
- the Act provides church leaders with helpful guidance in drafting their own child abuse policies, and
- it provides a benchmark or standard that churches can follow to help defend against child abuse claims alleging negligence in the selection and supervision of workers.
What Pastors Should Do After Learning About an Allegation of Child Abuse
Clergy who learn of allegations of child abuse should consult with a local attorney and carefully consider the following questions and action steps:
- Am I a mandatory or a permissive reporter under state law?
- If the allegations are true, do they constitute child abuse as defined under state law? In some states the definition of child abuse is limited to abuse inflicted by a parent or person responsible for a child’s care.
- Do I have reasonable cause to believe that abuse has occurred? Be sure to interpret this broadly. An alleged offender’s denial of any wrongdoing does not preclude reasonable cause. Remember, offenders typically deny wrongdoing.
- Did I receive the information in the course of spiritual counseling? If so, does the clergy-penitent privilege protect me from disclosing this information? In some states, it does, but this does not mean that the abuse should not be reported.
- Do I have any risk of civil liability under state law if I choose not to report the abuse? It is possible that abuse victims will be permitted to sue clergy who fail to report if their injuries are aggravated and perpetuated because of the failure to report.
- Do I have any risk of criminal liability under state law if I choose not to report the abuse?
- If you report by telephone, be sure to obtain the name of the agent you spoke with, and make a telephone memorandum with the agent’s name, date, and time of the call, and a summary of the conversation.
- Note the time you have under your state’s reporting law to make a report. In many states, a report must be made “immediately.” Criminal charges may ensue if a report is not made within the limits prescribed by law.
- Always err on the side of reporting.
- Seek legal counsel for assistance with any reporting issues.
CAUTION Because of the ambiguity in some key terms in the Act, its direct application to churches will not be clear in some cases. Church leaders should consult with legal counsel if in doubt as to their church’s coverage under the Act.
Here are seven ways that the recent legislation can inform and guide church policy and reporting procedures:
1. Public revulsion
The Act is a direct response to stunning revelations of child abuse by coaches and trainers involved in youth sports. Consider a few published statements by members of Congress as this legislation was being debated:
“It is the first responsibility of coaches, trainers, doctors and amateur athletic governing bodies to protect our athletes and help them thrive. When sexual abuse allegations go unreported to the authorities and abusers are allowed to continue to work with and prey upon young athletes, it is unconscionable. It demands our action and attention. This legislation will help ensure that we are protecting young athletes” (Rep. Susan Brooks, R-IN).
“Sexual abuse is one of the most heinous crimes and our legislation will finally ensure that adults who are responsible for the safety of millions of young athletes will be held accountable for preventing abuse and reporting any allegation of abuse. Passage of our legislation wouldn’t have been possible without the courage of women who came forward to say ‘enough is enough.’ They shared deeply personal, horrific experiences to help prevent other young girls from having to endure the same abuse and pain. Since I met with several brave women in February, I told them that I would work to pass this bill. Today is their day” (Sen. Dianne Feinstein, D-CA).
“Sexual abuse has absolutely no place in our society and must be eradicated” (Sen. Susan Collins, R-ME).
“Sexual misconduct is grossly reprehensible. This legislation will help protect young athletes … by requiring stringent standards for reporting abuse and holding abusers accountable” (Sen. Todd Young, R-IN).
“Children everywhere deserve to be protected from sexual predators. By establishing new safeguards, this legislation will help curb abuses of power and send a clear message that sexual abuse of young athletes will not be tolerated” (Sen. Elizabeth Warren, D-MA).
These, and many other statements by members of Congress of both political parties, reflect the universal public abhorrence at child abuse and any attempt by charitable organizations to “cover up” or not vigorously pursue allegations of abuse. Church leaders should keep this in mind when making decisions regarding the selection and supervision of youth workers, and a decision whether to report child abuse to civil authorities.
2.The importance of prompt reporting of child abuse
One of the key features of this legislation is mandatory child abuse reporting by a long list of “covered individuals” and “covered professionals.” The reporting obligation is triggered by the awareness of facts “that give reason to suspect that a child has suffered an incident of child abuse, including sexual abuse.” The underlying assumption is that one of the best ways to attack and diminish the scourge of child abuse is through a robust reporting requirement.
The lesson for church leaders is the importance of compliance with child abuse reporting laws. All 50 states enumerate categories of persons who are under a legal duty to report abuse to designated civil authorities. In most states, such “mandatory reporters” must report both actual and reasonably suspected cases of child abuse. Failure to do so is a crime (usually a misdemeanor).
Some states define mandatory reporters to include any person having a reasonable belief that child abuse has occurred. Obviously, ministers and lay church staff will be mandatory reporters under these statutes. The remaining states define mandatory reporters by referring to a list of occupations which generally includes physicians, dentists, hospital employees, nurses, coroners, school employees, nursery school workers, law enforcement officers, and licensed psychologists. Ministers are specifically identified as mandatory reporters under several of these statutes. But even if they are not, they may be mandatory reporters if they fall within a listed classification, such as school or childcare workers and administrators, or counselors. In summary, many ministers have a mandatory duty to report child abuse, and should not assume that they have no duty to report.
Ministers who are not mandatory reporters under their state’s law generally are considered “permissive reporters,” meaning that they are encouraged to report cases of abuse to designated civil authorities but are not legally required to do so.
Ministers who are mandatory reporters of child abuse under state law are under a profound ethical dilemma when they receive information about child abuse in the course of a confidential counseling session that is subject to the clergy-penitent privilege. They have to choose between fulfilling their legal obligation to report or honoring their ecclesiastical duty to maintain the confidentiality of privileged communications. A number of states have attempted to resolve this dilemma by specifically exempting ministers from the duty to report child abuse if the abuse is disclosed to them in the course of a communication protected by the clergy-penitent privilege. Other states, while not specifically excluding ministers from the duty to report, do provide that information protected by the clergy-penitent privilege is not admissible in any legal proceeding regarding the alleged abuse. Some state child abuse reporting statutes do not list the clergy-penitent privilege among those privileges that are abolished in the context of child abuse proceedings. The intent of such statutes may be to excuse ministers from testifying in such cases regarding information they learned in the course of a privileged communication.
Even if the clergy-penitent privilege applies in the context of child abuse reporting, it is by no means clear that the privilege will be a defense to a failure to report, since (1) the information causing a minister to suspect that abuse has occurred may not have been privileged (that is, it was not obtained in confidence, or it was not obtained during spiritual counseling); and (2) a privilege ordinarily applies only to courtroom testimony or depositions, and not to a statutory requirement to report to a state agency.
3. Civil remedies for personal injuries
The Act allows minor victims to sue their perpetrators for 14 criminal offenses that cover sexual abuse acts and exploitation of minors as well as human trafficking crimes. It also clarifies that once a victim has established a harm occurred, the court will presume $150,000 in monetary damages. Punitive damages also may be awarded when warranted.
Exposing mandatory reporters to civil liability, and potentially significant jury verdicts, for failure to report abuse is perhaps the most potent means of compelling them to report. In any event, that is the philosophy enshrined in the Act.
Eight states have enacted laws that create civil liability for failure to report child abuse, and the Act’s adoption of this remedy likely will cause other states to follow suit. In these states, victims of child abuse can sue adults who failed to report the abuse. Not only are adults who fail to report abuse subject to possible criminal liability (if they are mandatory reporters), but they also can be sued for money damages by the victims of abuse. In each state, the statute only permits victims of child abuse to sue mandatory reporters who failed to report the abuse. No liability is created for persons who are not mandatory reporters as defined by state law. A summary of these eight state laws is set forth below.
- Arkansas. “A person required by this chapter to make a report of child maltreatment or suspected child maltreatment to the Child Abuse Hotline who purposely fails to do so is civilly liable for damages proximately caused by that failure.” Arkansas Code § 12-18-206.
- Colorado. Any person who is a mandatory reporter of child abuse and who willfully fails to report known or reasonably suspected incidents of abuse “shall be liable for damages proximately caused thereby.” Colorado Code § 19-3-304.
- Iowa. “Any person, official, agency or institution, required … to report a suspected case of child abuse who knowingly fails to do so or who knowingly interferes with the making of such a report … is civilly liable for the damages proximately caused by such failure or interference.” Iowa Code § 232.75.
- Michigan. “A person who is required by this act to report an instance of suspected child abuse or neglect and who fails to do so is civilly liable for the damages proximately caused by the failure.” Michigan Compiled Laws § 722.633.
- Montana. “Any person, official, or institution required by law to report known or suspected child abuse or neglect who fails to do so or who prevents another person from reasonably doing so is civilly liable for the damages proximately caused by such failure or prevention.” Montana Code § 41-3-207.
- New York. “Any person, official or institution required by this title to report a case of suspected child abuse or maltreatment who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure.” New York, Social Services Law § 420.
- Ohio. “Whoever violates division (A) of this section [i.e., mandatory child abuse reporters] is liable for compensatory and exemplary damages to the child who would have been the subject of the report that was not made. A person who brings a civil action or proceeding pursuant to this division against a person who is alleged to have violated division (A)(1) of this section may use in the action or proceeding reports of other incidents of known or suspected abuse or neglect, provided that any information in a report that would identify the child who is the subject of the report or the maker of the report, if the maker is not the defendant or an agent or employee of the defendant, has been redacted.” Ohio Revised Code § 2151.421(N).
- Rhode Island. “Any person, official, physician, or institution who knowingly fails to perform any act required by this chapter or who knowingly prevents another person from performing a required act shall be civilly liable for the damages proximately caused by that failure.” Rhode Island General Laws § 40-11-6.1.
Key point. Persons who are mandatory child abuse reporters in Arkansas, Colorado, Iowa, Michigan, Montana, New York, Ohio, and Rhode Island can be sued by victims of child abuse for failure to comply with state child abuse reporting requirements. These lawsuits may be brought in some states many years after the failure to report. It is possible that other state legislatures will enact laws giving victims of child abuse the legal right to sue mandatory reporters who failed to comply with their reporting obligations. It is also possible that the courts in some states will allow victims to sue mandatory reporters (and perhaps those who are not mandatory reporters) for failing to report child abuse even if no state law grants them the specific right to do so. These potential risks must be considered when evaluating whether or not to report known or suspected incidents of child abuse.
CASE STUDY An Indiana appeals court ruled that an adult who had been abused as a minor could sue his pastor on the basis of negligence for failing to report the abuse. The court concluded:
[The pastor] knew of the alleged abuse and could have reasonably foreseen that it would continue absent adult intervention. In addition, there is a genuine issue of material fact as to whether [he] enjoyed a special relationship with [the victim]. When the level of interaction or dependency between an abused child and an adult results in a special relationship, the adult necessarily assumes a greater responsibility for that child. The special relationship imbues to the child a sense of security and trust. For the child, the stakes are high. For the adult, making a good faith report to a local child protection service is neither burdensome nor risky. In such circumstances, the adult is committing an even greater disservice to the child when the adult fails to make a report of the alleged abuse. J.A.W. v. Roberts, 627 N.E.2d 802 (Ind. App. 5 Dist. 1994).
CASE STUDY The Maine Supreme Court ruled that a religious organization could be sued by a victim of child molestation on the ground that it knew of the molestation but failed to report it to civil authorities. The court concluded:
If a religious organization knows or has reason to know that a member of its clergy has a propensity to sexually abuse children, the First Amendment is not necessarily violated if the civil law imposes on the organization a duty to exercise due care to protect children with whom the organization has a fiduciary relationship … . [The victim’s] claim that the diocese learned of the priest’s propensity to sexually exploit and abuse young boys, but failed to report him to law enforcement officials and then concealed the information from the parishioners, and the public, stated a claim upon which relief can be granted. Fortin v. Roman Catholic Bishop of Portland, 871 A.2d 1208 (Me. 2005).
4. Criminal liability for failing to comply with mandatory reporting requirements
Persons who are legally required to report child abuse are subject to criminal prosecution for failure to do so. Criminal penalties for failing to file a report vary, but they typically involve short prison sentences and small fines.
The Act exposes mandatory child abuse reporters to criminal liability by stipulating that a mandatory reporter “who learns of facts that give reason to suspect that a child has suffered an incident of child abuse … and fails to make a timely report … shall be fined under this title or imprisoned not more than 1 year or both.”
CASE STUDY A California appeals court upheld the conviction of two pastors for failing to report an incident of child abuse. The court rejected the pastors’ claim that their conviction amounted to a violation of the First Amendment guaranty of religious freedom by forcing them to report incidents of abuse rather than “handling problems within the church.”
The court concluded, “The mere fact that a [minister’s] religious practice is burdened by a governmental program does not mean an exception accommodating that practice must be granted. The state may justify an inroad on religious liberty by showing it is the least restrictive means of achieving some compelling state interest. Here, if [the pastors] are held to be exempt from the mandatory requirements of the [child abuse reporting law] the act’s purpose would be severely undermined. There is no indication teachers and administrators of religious schools would voluntarily report known or suspected child abuse. Children in those schools would not be protected. The protection of all children cannot be achieved in any other way.” People v. Hodges, 13 Cal. Rptr.2d 412 (Cal. Super. 1992).
CASE STUDY A public school administrator and the principal of a public secondary school (the “defendants”) had reasonable cause to suspect that sexual contact between a 12-year-old boy and a 13-year-old girl occurred at the school during school hours. The defendants reported the incident to the children’s parents and the police, but did not report the incident to the state social services agency designated by law to receive reports of child abuse. They were subsequently charged with a violation of the state child abuse reporting law. A Michigan appeals court ruled that the defendants were not liable for failing to report child abuse, since sexual contact between teenagers did not meet the definition of reportable child abuse under state law. The court noted that state law defined reportable child abuse as “harm or threatened harm to a child’s health or welfare by a parent, a legal guardian, or any other person responsible for the child’s health or welfare, or by a teacher or teacher’s aide.” This definition excluded sexual contact between adolescent public school students. People v. Beardsley, 688 N.W.2d 304 (Mich. App. 2004).
CASE STUDY The Pennsylvania Supreme Court affirmed the felony conviction of a priest who worked in an administrative position with an archdiocese for “endangering the welfare of a child” for failing to take steps to protect children from a priest who had molested children. Commonwealth v. Lynn, 2015 WL 1888582 (Pa. 2015).
5. Statutes of limitation
The Act continues the national trend of extending statutes of limitation for civil lawsuits by victims of child sexual abuse. The Act extends the statute of limitations for a minor victim of a federal sex offense to file a civil action to 10 years (it was 3 years) from the date such individual reaches age 18. Many states have done more, with most recognizing a “discovery rule” suspending or “tolling” the statute of limitations until victims of childhood abuse “discover” that their emotional or psychological injuries were caused by the abuse regardless of when it occurred.
The Act provides that all covered individuals and professionals “shall receive periodic training in the obligation to report, as well as in the identification of abused and neglected children.” Few states have adopted such a requirement, but it nevertheless is a good idea and best practice which likely will be followed by many states.
The Act provides that “national governing bodies” (i.e., an amateur sports organization that is recognized by the United States Olympic Committee) shall perform several duties, including the development and enforcement of the following policies:
- requiring all adults authorized by a national governing body or a member of a national governing body to interact with a minor or amateur athlete at an amateur sports organization facility or at any event sanctioned by a national governing body or a member of a national governing body, to report facts that give reason to suspect child abuse, including sexual abuse, as required by relevant federal or state law, to law enforcement authorities and other appropriate authorities, including an entity designated by the corporation to investigate and resolve such allegations;
- procedures to ensure that covered individuals are instructed to avoid one-on-one situations with any amateur athlete who is a minor (other than such an athlete for whom the covered individual is a legal guardian) at an amateur sports organization facility, at any event sanctioned by a national governing body, or any event sanctioned by a member of a national governing body, without being observable or interruptible by another adult; and
- oversight procedures, including regular and random audits, not to exceed once a year, conducted by subject matter experts unaffiliated with the national governing body, of all members and adults described in subparagraph (A) to ensure that policies and procedures developed under this paragraph are followed correctly and that consistent training is offered and given to all members regarding prevention of sexual abuse.
These are excellent policies and “best practices” for churches to follow.
Proposed Legislation: The Volunteer Organization Protection Act of 2017
In 1997 Congress enacted the Volunteer Protection Act (42 U.S.C. § 14501) based on the following three findings:
- the willingness of volunteers to offer their services is deterred by the potential for liability actions against them;
- as a result, many nonprofit organizations have been adversely affected by the withdrawal of volunteers from boards of directors and service in other capacities; and
- due to high liability costs and unwarranted litigation costs, volunteers and nonprofit organizations face higher costs in purchasing insurance, through interstate insurance markets, to cover their activities.
The 1997 Act clarifies that it “preempts the laws of any state to the extent that such laws are inconsistent with this [Act] except that this [Act] shall not preempt any state law that provides additional protection from liability relating to volunteers or to any category of volunteers in the performance of services for a nonprofit organization or governmental entity.”
The 1997 Act has three main provisions.
First, no volunteer of a nonprofit organization shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization if:
- the volunteer was acting within the scope of his or her responsibilities in the nonprofit organization or governmental entity at the time of the act or omission;
- if appropriate or required, the volunteer was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice in the state in which the harm occurred, where the activities were or practice was undertaken within the scope of the volunteer’s responsibilities in the nonprofit organization or governmental entity;
- the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer; and
- the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the state requires the operator or the owner of the vehicle, craft, or vessel to possess an operator’s license or obtain insurance.
Second, the 1997 Act provides no protection to nonprofit organizations themselves.
Third, punitive damages may not be awarded against a volunteer unless the victim proves by clear and convincing evidence that the harm was caused by the volunteer’s willful or “criminal misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed.”
This law, and its state counterparts, provide volunteer workers in churches and other nonprofit organizations with valuable protection against personal liability. But the 1997 Act is clear that it affords protection only to uncompensated volunteers working for a nonprofit organization and not to the organization itself.
In 2017, the Volunteer Organization Protection Act (H.R. 2432) was introduced in Congress to expand liability protections to volunteer nonprofit organizations for harm caused by an act or omission of a volunteer on behalf of the organization. The proposed law defines a “volunteer nonprofit corporation” as a corporation that meets one or more the following three tests:
1. A nonprofit organization that conducts substantially all of its activities solely through the actions of volunteers or of independent contractors. A nonprofit organization is conclusively presumed to be a volunteer nonprofit organization if the organization has no employees.
2. A nonprofit organization is presumed to be a volunteer nonprofit organization if the organization’s primary office and the majority of its employees function primarily to provide support to local affiliated organizations that do not have employees and who act in furtherance of the organization’s nonprofit mission. This presumption can be rebutted only by a clear and convincing showing that the organization’s board expressly authorized its employees to assert active control over the local affiliated organization with respect to the act or omission in question.
3. A nonprofit organization that has fewer than 50 employees, that has annual gross receipts of less than $200,000, and that is any of the following:
- A public charity that is exempt from taxation under section 501(c)(3) of the Internal Revenue Code.
- A private foundation that is exempt from taxation under section 501(c)(3) of the Internal Revenue Code but that does not qualify as a public charity.
- A social welfare organization that is exempt from taxation under section 501(c)(4) of the Internal Revenue Code.
The proposed law prohibits such liability protections from applying if the organization:
- would be liable under laws governing the direct or vicarious liability of organizations, and
- expressly authorized the specific conduct constituting the act or omission.
The bill bars such an organization from liability for harm caused by the organization, or a volunteer acting on its behalf, if the act or omission was at the request of, or pursuant to an authorization by, a state, the United States, or another governmental subdivision, provided that:
- the requesting or authorizing governmental entity would have been immune either from suit or from liability in damages if it had engaged in the acts or omissions itself or through employees or independent contractors; or
- the governmental employee, agent, or contractor would have been immune either from suit or from liability in damages by virtue of immunity extended to individual governmental actors.
The bill prohibits punitive damages from being awarded against a volunteer nonprofit organization for the actions of a volunteer within the scope of the volunteer’s responsibilities to the organization unless the claimant establishes by clear and convincing evidence that the organization itself expressly authorized the volunteer’s action with a conscious, flagrant indifference to the rights or safety of the individual harmed.
This legislation, if enacted, would provide valuable protections to churches.
At the time of publication, there were 36 cosponsors of this legislation in the House of Representatives. Any developments will be covered in future editions of Church Law & Tax Report and on ChurchLawAndTax.com.